*LGBT Indians stare at a bleak future* *With the Supreme Court refusing to review its December 2013 judgment on article 377, Indian Lesbians, Gays, Bisexuals and Transgender ( LGBT) face a sad and lonely road ahead says KETAN TANNA. * l
It's when the chips are really down that the human spirit needs to hang on to that extra little bit of inner strength. It's when the mind and body are exhausted from fighting that one needs to tell self not to give up. It's when there is no road seemingly ahead that one must try and find out that may be, hidden somewhere in the bleak foggy mist, is a road that could offer some rest and some salvation. This is the feeling that is running through the mind of LGBT Indians on Tuesday when the Indian Supreme Court rejected the petition to review its judgment on Section 377. What is article 377? Section 377 of the Indian Penal Code or IPC criminalizes " unnatural offences." It says that whoever voluntarily has " carnal intercourse against the order of nature with any man, woman or animal" shall be punished. The maximum punishment is imprisonment for life. Since the terms " carnal intercourse against the order of nature" and " unnatural offences" were not defined in the IPC, courts have had to interpret the terms. Courts have ruled that the purpose of " carnal intercourse" is procreation and hence, any non- procreative act would be " against the order of nature." They have also held that all forms of intercourse that are not penile- vaginal are not necessarily against the " order of nature". The Indian Supreme Court on 28th January 2014 said that it will not review its controversial order that made gay sex criminal in India. Justice HL Dattu and Justice SJ Mukhopadhaya who heard the plea for the review petition in the private chambers refused to accept the Centre's plea for reviewing the earlier decision by Justice Singhvi and Justice Mukhopadhaya. The SC decision had re- criminalised ' unnatural' sex once again. Its earlier decision in December 11, 2013 had drawn sharp criticism internationally for failing to protect fundamental individual rights. United Nations human rights chief Navi Pillay had said that criminalizing private, consensual same- sex sexual conduct violated the rights to privacy and to non- discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified. " The Supreme Court decision in this case represents a significant step backwards for India and a blow for human rights," she said. In 2009, the Delhi High Court exempted gay sex between consenting adults from the ban imposed by Section 377. That verdict was the result of a case brought by the Naz Foundation, a sexual rights organization, which fought a legal battle for almost a decade. Different religious groups appealed against the Delhi High Court's decision in the Supreme Court, which ruled in their favour. The Supreme Court bench, headed by G. S. Singhvi on his last day before retirement, found the High Court had overstepped its authority and that the law passed by the British in 1860 does not violate the Constitution. The Supreme Court stated then that only the Parliament could change the law, by deleting Section 377 which is a British colonial- era statute of the Indian Penal Code which bans sex " against the order of nature". This essentially means that all LGBT sex in India is unnatural and that all LGBT individuals when they have sex Indian are unapprehended felons or criminals. The Union Government and gay rights activists had appealed against the Supreme Court's December 2013 decision. But judges in their wisdom said that they saw no reason to interfere with the order. So what next? The Union government has two options: it can either file a curative petition in the Supreme Court, or it can try to amend the law in Parliament. A curative petition, the final appeal in the legal process, is heard by the Supreme Court's senior- most judges including the Chief Justice of the country. The curative petition has to be certified by a senior advocate and is then circulated to the three senior most judges and the judges who delivered the impugned judgment. After the curative petition is given to these judges, it will be heard only if majority of the judges decide that matter needs urgent hearing. Amending the law in Parliament will be moretough for the government. The main opposition party, the Bhartiya Janata Party or the BJP, has said it backs Article 377. There is every likelihood that the BJP may form the next government at the Centre and they bringing any Constitutional amendment in favor of decriminalizing gay sex ( read LGBT sex) or reading down Article 377 ) is as possible as the Pope saying LGBT orientation is natural and that he supports gay marriages. A direct impact of the December 2013 judgment making LGBT sex unnatural in India has been the reemergence of fear and a feeling of helplessness in a vast number of LGBT which prefer to remain in the shadows. Blackmailing, harassment by predators, hustlers, criminals and even police of LGBT individuals is slowly getting back into business especially in areas like public gardens, railway stations where the middle and the lower middle class LGBT tend to cruise for partners. LGBT dating sites have also seen a reduction in those putting up their profiles. Though hard statistics are yet to come in, anecdotal instances of many LGBT Indians deactivating their profiles in gay sites like Planet Romeo, Manjam is increasingly becoming common. A major impact which is already happening would be on accessing LGBT Indians for HIV/ health issues. With the fear of intimidation and the label of being a " criminal" hanging like a sword, not many LGBT Indians would dare to come out openly and seek access to health related services that are must for LGBT population. This had to happen. Leading gay rights activist, Ashok Rao Kavi was quoted after the December 11, 2013 judgment as saying that Supreme Court judgment criminalizing gay sex gave a stark message of " go in a closet and die". In Kavi's opinion, the judgment would have a global impact for the image of India as a progressive nation. Kavi's words proved prophetic when in the first ever case of asylum for a gay couple, two Indians, Jagdish Kumar and his partner Sukhwinder Sukhwinder were granted asylum on December 20, 2013 and allowed to stay in the United States because of their fear of being persecuted for being gay in India. Following the Indian Supreme Court order upholding Section 377 of the Indian Penal Code, Kumar and Sukhwinder had a strong case though they had to wait six months before their case was decided. -- *Email: modera...@gaybombay.in <modera...@gaybombay.in> E Groups: http://groups.yahoo.com/group/gay_bombay <http://groups.yahoo.com/group/gay_bombay> http://groups.google.com/group/Gaybombay <http://groups.google.com/group/Gaybombay> http://groups.google.com/group/GayIndia <http://groups.google.com/group/GayIndia> Public archives at http://www.mail-archive.com/gay_bombay%40yahoogroups.com/maillist.html <http://www.mail-archive.com/gay_bombay%40yahoogroups.com/maillist.html> Rss feed: http://www.mail-archive.com/gay_bombay@yahoogroups.com/maillist.xml <http://www.mail-archive.com/gay_bombay@yahoogroups.com/maillist.xml> GB Internet Radio at http://www.gaybombay.in/gbradio <http://www.gaybombay.in/gbradio> Web Sites: www.gaybombay.in <http://www.gaybombay.in> www.gayindia.org <http://www.gayindia.org> Orkut: http://www.orkut.co.in/Main#Profile?uid=15084918632470824129 <http://www.orkut.co.in/Main#Profile?uid=15084918632470824129> Blogs: http://gaybombay.blogspot.com <http://gaybombay.blogspot.com> http://gaybombay.wordpress.com <http://gaybombay.wordpress.com> Twitter: http://twitter.com/gaybombay <http://twitter.com/gaybombay> http://twitter.com/gayindia <http://twitter.com/gayindia> Facebook: http://www.facebook.com/gaybomba <http://www.facebook.com/gaybombay> *
